Coordinating Section 4(f) Compliance

by Kevin J. Starner and Lamar S. Smith

Given SAFETEA-LU's changes to the law for evaluating projects that involve publicly owned property, consultation is the key more than ever.

(Above) Roadway improvement projects that use public property must undergo USDOT evaluation and approval. On this section of Pennsylvania State Route 2001, the narrow travel lanes and lack of shoulders do not meet minimum requirements for a rural major collector. Photo: Kevin Starner, Skelly and Loy, Inc.

Federally funded transportation projects that involve the use of Section 4(f) property (publicly owned public park, recreation area, or designated wildlife and waterfowl refuge land or significant historic property) must undergo a formal evaluation and approval process that can be long and complex. Transportation use of these properties is subject to the requirements of Section 4(f) of the U.S. Department of Transportation (USDOT) Act of 1966. The law is complicated and has a number of substantive requirements. But a stronger emphasis on careful coordination with all stakeholders — even though not specifically required by the original law — can reduce stumbling blocks during the process and help protect these important resources.

As part of the development process for Federal transportation projects, compliance with 4(f) requirements typically is evaluated during the National Environmental Policy Act (NEPA) decisionmaking phase, concurrent with other environmental and cultural resource studies.

During this stage, agency coordination, public involvement, and other outreach activities have the greatest potential to influence the outcome of a project. This need for coordination may be particularly true for the Section 4(f) evaluation and approval process, which relies a great deal on consultation with the officials who have jurisdiction. Although Section 4(f) does not require public involvement, public opinion can be important to the officials with jurisdiction and may influence their concurrence during the NEPA process.

"We like to say that coordination should happen 'early and often,'" says Colleen M. Brown, P.E., a project development engineer in the Highway Quality Assurance Division, Bureau of Design, Pennsylvania Department of Transportation (PennDOT). "That means coordination with all parties, including PennDOT, the Federal Highway Administration (FHWA), the public, and the officials with jurisdiction over the Section 4(f) resource," she adds.

The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), enacted in 2005, the most recent Federal transportation law, contains a Section 4(f) de minimis (minor) impact provision. SAFETEA-LU emphasizes the importance of coordination with the officials with jurisdiction because it requires their written concurrence in USDOT's determination of no adverse effects on the activities, features, and attributes of the Section 4(f) property before making the de minimis impact finding.

The Section 4(f) Requirements

Before the SAFETEA-LU change in de minimis evaluations was enacted, Section 4(f) (as amended and codified in 49 U.S.C. §303 of the USDOT Act of 1966) covered all evaluations of transportation projects requiring the use of 4(f) property. The law stated that the Secretary of Transportation may approve a transportation project that will use 4(f) property only if there is no prudent and feasible alternative to using that land, and only if the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.

The Section 4(f) process involves an analysis of avoidance alternatives (no reasonable alternative to the use of 4(f) property) and an assessment of least harm. These requirements are triggered regardless of the type or size of the project, NEPA, class of action (categorical exclusion, environmental assessment, or environmental impact statement), or the USDOT administration involved in the project. Regardless of the Section 4(f) involvement, coordination with the resource officials is necessary in practice to comply fully with Section 4(f) requirements.

Karyn Vandervoort, environmental program manager in FHWA's Pennsylvania Division office, says that coordination actually needs to go one step further. "To coordinate is merely to bring together," she says. "Now more than ever, due to changes in Section 4(f), consultation is key. To consult is to engage and consider the input of others. Consultation occurs throughout a project's development, and all the players should have a role." She points out that a lack of consultation can result in partial or incorrect information and poorly completed applications, hindering the process.

This face-to-face meeting of project designers is an efficient way to facilitate coordination for a Section 4(f) project, enabling the participants to share engineering drawings, maps, and proposal documents. Written correspondence, telephone conversations, field views (formal meetings in the field), and site visits also are acceptable.

The Individual Section 4(f) Evaluation Process

Project compliance with Section 4(f) requirements is documented through the development and circulation of a comprehensive written evaluation. These Section 4(f) evaluations can be lengthy and complex documents.

Normally an evaluation includes several elements: a general overview of the proposed project, a summary of the project purpose and need, a detailed description of the subject Section 4(f) resources, an analysis of project alternatives (including those that totally avoid the Section 4(f) resources), a synopsis of the project coordination with the officials having jurisdiction over the subject Section 4(f) resources, and a concluding statement as to which project alternative will result in the least harm to the subject Section 4(f) resources.

Individual Section 4(f) evaluations must be circulated a minimum of 45 days for review by the U.S. Department of the Interior, the U.S. Department of Agriculture (if applicable), the U.S. Department of Housing and Urban Development (if applicable), and the official(s) with jurisdiction over the Section 4(f) resources. Following this 45-day review period, the draft Section 4(f) evaluation is revised (if necessary) and submitted to the appropriate USDOT agency for a legal sufficiency review.

Typical Individual Section 4(f) Evaluation

General overview

Summary of project purpose and need

Detailed description of Section 4(f) resources

Analysis of project alternatives

Synopsis of project coordination

Concluding statement—describing which alternative will result in least harm to 4(f) resources

(The review period is a minimum of 45 days.)

The final Section 4(f) evaluation is not approved until it is found to be legally sufficient. The intent of this review is to ensure that the evaluation and project record adequately and accurately reflects consideration of the Section 4(f) requirements and provides evidence of compliance. Legal sufficiency is an important component of the Section 4(f) evaluation process, as Section 4(f) compliance historically has been one of the most litigated aspects of the process of developing transportation projects.

"You need adequate support information to make the Section 4(f) determination successful," Vandervoort says. "Figures, mapping, pictures, and documentation of consultation are all important. It doesn't have to be verbose, just poignant and relative."

In Pennsylvania, she adds, "FHWA uses several different types of checklists to document the Section 4(f) determination. These forms seem to expedite the process — indirectly they tutor the preparer on what information is necessary for FHWA to make the determination."

Programmatic Section 4(f) Evaluations: An Alternative

As a procedural alternative to the preparation of an individual Section 4(f) evaluation, certain transportation projects are eligible for the application of a programmatic evaluation. Programmatic Section 4(f) evaluations offer a streamlined and more efficient process to Section 4(f) compliance than individual 4(f) evaluations. Programmatic evaluations do not need to be circulated for the 45-day review period or submitted for a legal sufficiency review. A programmatic evaluation also provides greater flexibility in the level of documentation that is required.

For a project to be eligible for the application of a programmatic Section 4(f) evaluation, it must meet certain criteria as specified in one of the existing five programmatic evaluations (see www.environment.fhwa.dot.gov/projdev/4fnspeval.asp for more details). In general, programmatic Section 4(f) evaluations can be applied to certain types of transportation projects with minor uses of 4(f) property. Eligible projects also must meet certain scope requirements. FHWA is responsible for determining the applicability of programmatic Section 4(f) evaluations at the project level. Currently, projects eligible for the application of a programmatic evaluation fall under the following five categories:

Projects that involve minor taking of property from public parks, recreation areas, or wildlife and waterfowl refuges

Projects that involve minor property takes from historic sites

Projects that involve the use of a historic bridge structure

Independent bikeway and walkway construction projects

Projects that have a net benefit to a Section 4(f) property

De Minimis Impact Finding

SAFETEA-LU amended the existing 4(f) law to simplify the processing and approval process for those projects that have only a de minimis impact on a public land resource. The SAFETEA-LU streamlining measure is the first substantive change to the Section 4(f) law since its adoption in 1966. The basic premise of this change is that once a project is determined to result in a "very minor" impact, an analysis of avoidance alternatives is not required, and the Section 4(f) evaluation process is considered complete. It is important to note that the de minimis impact finding is contingent upon written concurrence from the officials with jurisdiction. Therefore, coordination is key to achieving the de minimis impact finding.

Advantages of Coordination

As described above, Federal transportation projects can have varying degrees of involvement with different types of Section 4(f) resources, and the level of analysis and documentation may vary accordingly. However, regardless of the type or use of Section 4(f) property, coordination with the officials with jurisdiction is an important and necessary part of the Section 4(f) evaluation process. In addition to being required early in the determination of a property's significance and the applicability of Section 4(f) requirements, coordination can aid greatly in the overall development, acceptance, and approval of a project.

Early and frequent coordination with the officials with jurisdiction can lead to the identification and resolution of problems and issues that could otherwise delay the development of a project. In a similar manner, coordination with the officials can, and indeed should, result in the identification and implementation of mutually acceptable mitigation measures to minimize harm. As such, coordination with the officials with jurisdiction can be beneficial not only in terms of project streamlining, but also in resource protection.

Stages of Coordination

Coordination with the officials with jurisdiction can occur at various stages of the Section 4(f) evaluation process. First and foremost, coordination with the officials should be conducted at the outset of a project. This is true for two different, but equally important reasons. Initially, the officials with jurisdiction should be consulted to identify resources accurately, delineate appropriate boundaries, and assess the significance of the subject Section 4(f) resources. In this capacity, this first round of coordination should provide sufficient information to determine whether the resource in question is in fact eligible as a Section 4(f) resource. The second primary function of this first round of coordination is to inform the officials that a transportation project is planned for the general proximity of the resource.

Following the development of project alternatives or the identification of a preferred project alternative (depending on the size and scope of the project), the transportation team developing the project should initiate a second coordination effort with the officials who have jurisdiction. The primary purpose of this second coordination stage is to ensure that the project development team accurately identifies and assesses the proposed project's impact(s) on the subject Section 4(f) resource and identifies opportunities to avoid and minimize harm to the resource. Again, this second coordination effort serves a dual function. In addition to accurately assessing impacts, the transportation team provides information to the officials who have jurisdiction over the proposed project's impact on the subject Section 4(f) resource.

From this point, the coordination process can go any number of directions. The net effect or outcome, however, should be the identification of mutually acceptable minimization and mitigation measures to offset or balance the project's use of the subject Section 4(f) resource. The project team should work with the official with jurisdiction to determine who from that entity or agency is the correct representative for consultation and correspondence. Once the person is identified, it is best to work directly with that person to avoid potential communication gaps. Written concurrence from the officials who have jurisdiction on the assessment of project impacts and the proposed mitigation or enhancement measures is typically a desired, if not required, outcome. This written concurrence is required, however, for projects that are determined to have only a de minimis impact.

It is important to note that this coordination process is not prescribed or predetermined by the Section 4(f) law. The process is merely representative of what a typical or customary coordination process may entail. Similarly, the method or avenue of coordination (that is, written correspondence, telephone conversations, field views, site visits, meetings) is at the discretion of the project development team. It is not uncommon for a single project to involve a combination of these methods.

Coordination efforts in the Section 4(f) evaluation process can produce positive outcomes for both the project and the resource when conducted effectively. A 21-kilometer (13-mile) Pennsylvania roadway improvement project requiring the use of publicly owned land from a national recreation area and an associated programmatic Section 4(f) evaluation offer a case study to demonstrate the applicability of this concept.

Pennsylvania Case Study

The Milford Road improvement project is located in Pike County, which is in the northeastern part of the Commonwealth of Pennsylvania. The project involves reconstructing an existing two-lane roadway to improve safety and to meet current design criteria for shoulder and travel-lane width, and horizontal and vertical curvature. Implementation involves the use of property from the Delaware Water Gap National Recreation Area.

Given the use of a Federal recreational resource, the project was coordinated with the U.S. Department of the Interior's National Park Service (NPS). The coordination efforts conducted with NPS were a key factor in achieving environmental clearance for the project.

Sharon Okin, PennDOT District 8-0 environmental manager, points out that Pennsylvania begins the project design process with a "scoping" field view to discuss preliminary alternatives and potential environmental impacts with careful coordination. "Early in the project design," she says, "having the manager of the park or recreational area present at the scoping saves a lot of time in determining whether the property is protected under 4(f) and in identifying the significant aspects of the resource.

"Similarly, she adds, "we have State cultural resource archaeological and historical properties professionals at scopings to determine the potential of having an eligible property present and the effect of the project. These professionals have the opportunity to work with the designers in the field to discuss avoidance and minimization measures as well as context sensitive design. These efforts can lead us to a "no effect" or "no adverse effect" determination that allows us to apply the de minimis finding."

Okin also strongly recommends the use of checklists to assure smooth sailing through the evaluation and approval procedure. "The checklists developed by FHWA and PennDOT set up a standard format for documenting the absence of 4(f) resources, temporary use, de minimis use, or programmatic finding. Having this standard format makes the information more complete, better organized, and easier to review and approve."

In 2001 PennDOT, in cooperation with FHWA, initiated preliminary engineering studies for improving sections 401 and 402 of State Route 2001 (Milford Road). These preliminary engineering studies focused on reconstructing a 22-kilometer (13.5-mile) section of Milford Road from its intersection with State Route 0739 in Delaware Township south to its intersection with U.S. Route 209 at Bushkill. The need for this project was based on the existing roadway's substandard travel lane and shoulder width and horizontal and vertical curvature.

Initial Coordination

Preliminary investigations of the project area revealed the presence of three resources protected under Section 4(f). They are the Delaware Water Gap National Recreation Area (a publicly owned recreation area under the administrative/management jurisdiction of NPS) and the Turn Store and Tinsmith's Shop and the Peters House, two properties listed in the National Register of Historic Places.

A Historic Resources Survey and Determination of Eligibility Report, conducted in conformance with Section 106 of the National Historic Preservation Act, revealed the presence of a fourth Section 4(f)-protected resource, the Crane-Goldhardt House, eligible for inclusion in the National Register of Historic Places. The survey and report were coordinated with the Pennsylvania Historical and Museum Commission (PHMC), which serves as Pennsylvania's State historic preservation office, the entity with jurisdiction over the Common-wealth's historic resources.

The project team also conducted early coordination with NPS regarding the boundaries and regional significance of the Delaware Water Gap National Recreation Area. In fact, representatives of NPS attended the project's engineering and environmental scoping field view meeting.

Second Steps

Following the initial coordination with NPS and PHMC, the project team developed an improvement alternative that would avoid or minimize impacts on the identified Section 4(f) resources to the maximum extent possible while still meeting the project need. Because the Delaware Water Gap National Recreation Area was identified at several locations as being immediately adjacent to both sides of the existing roadway and because the scope of the proposed project involved roadway widening, the possibility of totally avoiding this resource was dismissed early in the alternatives analysis process.

Regarding the three historic Section 4(f) resources, however, avoidance seemed likely, because they are located on only one side of the existing roadway. So the project team focused its efforts on developing a project alternative that totally would avoid the historic Section 4(f) resources and also minimize impacts to the Delaware Water Gap National Recreation Area.

Armed with this information, the Milford Road project team recognized that certain design modifications would reduce significantly the amount of land to be affected. The team developed an improvement alternative that included a reduced typical section and a reduced cut/fill slope ratio. With these minimization measures in place, the proposed project uses about 15 hectares (37 acres) of land from the Delaware Water Gap National Recreation Area. This usage impact consists primarily of "strip takes" (a linear, land-only right-of-way acquisition) along the project length and is a minor portion of the 28,350-hectare (70,000-acre) Delaware Water Gap National Recreation Area. In addition, this alternative totally avoids all three historic Section 4(f) resources, thereby enabling the project's Section 4(f) documentation to be processed as a programmatic evaluation, citing very minor impact.

Having identified a preferred alternative, the project team initiated a second round of coordination with NPS and PHMC. In accordance with Section 106 requirements, the project team developed a Determination of Effects Report to document the project's impact on the identified historic resources. Since the preferred alternative avoids all historic resources, this report documented a "no effect" finding. PHMC concurred with this finding, which concluded the Section 106 process and the project's coordination with PHMC.

To coordinate the project's use of the Delaware Water Gap National Recreation Area with NPS, the project development team held a special purpose meeting. During development of the project, NPS representatives had attended several agency field views and a public meeting and were generally aware of the project's Section 4(f) implications. So the primary goal of the special purpose meeting was to discuss mitigation measures for the potential Section 4(f) use.

At the meeting, PennDOT and NPS agreed that replacement park property acquired on a value basis (as opposed to an acreage basis) would be a mutually acceptable mitigation measure. In addition, both parties concurred in the use of NPS property to address the project's wetland mitigation requirement. The mitigation agreements reached at the meeting were reported in the project's programmatic Section 4(f) document and were instrumental in achieving environmental clearance for the project, which occurred in 2004.

Because these agreements did not include specific provisions, coordination with NPS continued into the final design phase of project development, when specific parkland replacement parcels were identified. It was during this final design phase that NPS regional personnel unfamiliar with the previous coordination efforts raised new questions and concerns regarding various aspects of the proposed project. Additional coordination efforts therefore proved necessary. Although these unanticipated coordination efforts affected the project schedule, they were necessary to resolve project issues between the two agencies. Currently, coordination is ongoing with NPS to resolve issues associated with the project's archaeological investigations, utility relocations, and land transfer process.

Coordination Pays Off

As evidenced by the case study project, coordination with the officials with jurisdiction over a Section 4(f) property is an important and necessary aspect of the Section 4(f) evaluation process. Accurate identification of Section 4(f) property and resources, assessment of project impacts and use, and the development of mutually acceptable minimization, mitigation, or enhancement measures are contingent on an effective coordination effort with these officials.

Effective coordination associated with the Section 4(f) evaluation process is a longstanding FHWA policy. This concept is further emphasized by the recent amendment to Section 4(f) law via SAFETEA-LU and its associated de minimis impact finding provision, which requires written concurrence from the officials with jurisdiction and an opportunity for public review and comment (for nonhistoric resources). The requirement for written concurrence from the officials with jurisdiction associated with the de minimis impact finding is indicative of the importance of coordination in the Section 4(f) evaluation process.

Effective coordination and appropriate written concurrence from the officials with jurisdiction strengthens the validity of the Section 4(f) evaluation process and potentially expedites the review process. Documentation of the rigorous coordination effort further supports and strengthens the agreements made with the officials with jurisdiction. Regardless of the level of evaluation and documentation, coordination with the officials with jurisdiction is key to the successful completion of the Section 4(f) evaluation process and ultimately will result in improved project decisions while protecting the Nation's important Section 4(f) resources.

Lamar S. Smith is a team leader in the FHWA Office of Project Development and Environmental Review. A certified environmental professional with more than 19 years at FHWA, he leads activities of the Training, Technical Assistance, and Information Technology Team. He holds a degree in civil engineering from the University of Alabama in Birmingham.